The New Mexico Supreme Court recently denied the state Attorney General’s request to prevent defense experts from using their own facilities and equipment to analyze evidence in a child pornography prosecution. The Attorney General argued that expert witnesses should use the government’s computers and should examine the evidence in government facilities. The case raises troubling questions about the efforts of prosecutors to hinder the work of defense experts whose analysis of evidence may reveal that no law was broken.

Expert testimony is essential in child pornography cases because Congress can only prohibit the possession of pornography involving actual children. It is not unlawful to possess a drawing or painting of a child that is a product of an artist’s imagination. By the same token, it is not unlawful to possess a digitized image of a child who is not real. Discerning the difference between a digitized photograph of a real child and a digitally created image of a child who isn’t real requires careful expert analysis. Hindering experts from performing that analysis risks the conviction of defendants who committed no crime.

Federal Law and Expert Witnesses

Everyone agrees that when child pornography is used as evidence in a criminal case, the evidence should not be distributed to the public. Possession of child pornography, after all, is illegal.

In federal cases, the U.S. Justice Department went a step further by arguing that defense attorneys should not be given copies of the evidence against their clients in child pornography cases because defense lawyers cannot legally possess it. That position made it difficult for defense lawyers to share the evidence with expert witnesses, who sometimes discover that the images seized from defendants do not depict children, or even real people, and that they are not in fact illegal to possess. A cynic might suspect that undermining the ability of defense experts to challenge the prosecution’s evidence is exactly why the Justice Department does not want to share its evidence.

When defense attorneys pointed out that prosecutors were in possession of suspected child pornography and asked why prosecutors could possess it if defense lawyers couldn’t, the answer was typically “Because we’re the government and you’re not.” Courts did not always view that as a sensible answer. Some courts required prosecutors to give copies of the evidence to defense attorneys, so that expert witnesses could examine the images using the equipment in their facilities, subject to protective orders that prevented the release of the evidence to anyone else.

When courts began to give defendants meaningful access to evidence, the Justice Department asked Congress to pass a law making prosecutors the “custodians” of suspected images of child pornography and prohibiting defense attorneys from obtaining copies of those images. The law served no important public policy, since nobody seriously believed that defense attorneys or their experts were violating protective orders by distributing allegedly pornographic images to the public. Many defense attorneys suspected that prosecutors simply wanted to make it harder for defendants to have a fair trial by preventing defense experts from conducting a meaningful analysis of the evidence. As it usually does, however, Congress gave the Justice Department what it wanted.

In other cases, when evidence has been seized from a defendant, federal discovery rules requires the government to give a copy of that evidence to the defense. Congress enacted an exception to that law that applies to child pornography. A federal statute now provides: “(1) In any criminal proceeding, any property or material that constitutes child pornography . . . shall remain in the care, custody, and control of either the Government or the court.” Of course, whether evidence “constitutes child pornography” is exactly the issue that defense experts analyze and that juries must decide, but prosecutors read the law as if it says “any property or material that the government alleges is child pornography.” Courts generally seem to be fine with that interpretation, given that the obvious intent of the federal law is to keep evidence out of the hands of defense attorneys and their experts.

Challenges to Federal Law

Most challenges to the federal law have failed. The law requires prosecutors to give defense attorneys and their experts ample opportunity to examine the evidence at a place chosen by the government, which is usually a conference room in the U.S. Attorney’s office or at the local FBI office. Inspection is usually overseen by a law enforcement agent. Courts have occasionally sided with defense attorneys who argue they were not given sufficient time to analyze the evidence, but courts have not often been receptive to complaints that lawyers should have been given access to the evidence outside the confines of a government office.

Occasionally, however, courts have recognized that expert witnesses cannot conduct a meaningful analysis of the evidence without testing it in the expert’s own facilities. In one case, for example, a computer forensic expert and two digital video experts “described the great cost and effort that would be required to conduct their analyses in a Government facility,” including the expense of moving a large truckload of equipment to the government office and the risk of damaging the equipment during the move. The court sensibly ordered the government to give the expert a mirror image of the defendant’s hard drive so that the experts could analyze it in their own offices.

Notably, prosecutors have sometimes given their own experts unrestricted access to the evidence while limiting the access provided to defense experts. Courts have been appropriately critical of the assumption that private experts hired by the government are more trustworthy than private experts hired by the defense, although federal prosecutors have brazenly argued that private experts somehow become the government when they are hired by the government. At least one court rejected the argument that retained experts are government employees.

New Mexico Court Sides with Defense

The federal law that makes the government the custodian of child pornography evidence only applies to federal prosecutions. A few states have enacted similar laws, but state courts are generally free to safeguard the rights of defendants by entering protective orders when defense attorneys want experts to review the evidence in their own facilities.

Recognizing the important role played by expert witnesses in child pornography cases, a judge in Bernalillo County, New Mexico ordered the prosecution to provide copies of images seized from the defendant to the defense expert. The New Mexico Attorney General asked the state supreme court to reverse the order on the bizarre theory that prosecutors would be violating the law by following the court’s order. The concern that prosecutors will prosecute prosecutors for obeying a judge’s order, an act that clearly immunizes them from prosecution, did not persuade the state supreme court to overturn the judge’s ruling. The court denied the Attorney General’s effort to prevent the defense expert from conducting a fair analysis using the expert’s own equipment.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.